Boehm, Justice.
In 1992, Benny Saylor was sentenced to death despite a unanimous jury recommendation
to the contrary. In 2002, Indiana law was changed in an important
respect by requiring a unanimous jury recommendation of death before the death penalty
can be imposed. Appellate courts are to review and revise sentences that
are inappropriate. We conclude that it is not appropriate to execute a
person who was convicted and sentenced through a procedure that has now been
substantially revised so the same trial today would no longer render the defendant
eligible for the death penalty. At the time of Saylors crime, life
without parole could not be imposed under Indiana law. Accordingly, we revise
Saylors sentence to a term of one hundred years.

Factual and Procedural Background

The factual background surrounding Benny Saylors conviction is set forth in other opinions
of this Court. Saylor v. State, 765 N.E.2d 535 (Ind. 2002); Saylor
v. State, 686 N.E.2d 80 (Ind. 1997). On June 18, 1992, Judy
VanDuyns body was found in her van parked in a cornfield after a
night of heavy rainfall. Witnesses had observed Saylors car in the parking
lot of the laundromat where VanDuyn had gone to do her laundry.
When the police arrived to question Saylor, they found blood on his arms
and forehead, shoes matching the prints found at the crime scene, wet clothes,
and a wet billfold. At a lineup, a farmer identified Saylor as
the man he had seen in the van with VanDuyn. A jury
convicted Saylor of murder, robbery and confinement.
The circumstances of Saylors sentencing and changes in Indianas death penalty statute raise
the issue before us today. Although Indiana law now provides for the
possibility of a sentence of life without parole, Saylors crime was committed at
a time when the only sentencing alternatives in a death penalty case were
death or a term of years. Despite a unanimous recommendation against the
death penalty, the trial judge nevertheless imposed death. Saylor is one of
only three people in this state currently under a sentence of death despite
a jury recommendation against it.
See footnote
None of those have been executed.
At the time of Saylors trial and direct appeal Indiana law clearly authorized
the judge to override a jury recommendation if the judge found the statutory
aggravating circumstances to outweigh any mitigating circumstances.
Minnick v. State, 544 N.E.2d
471, 482 (Ind. 1989). Consistent with that authority, in 1997 this Court
affirmed Saylors sentence. Saylor, 686 N.E.2d at 89. In 2000, the
United States Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466 (2000),
which held that a jury must determine beyond a reasonable doubt any fact
necessary to enhance a sentence. In the 2002 session of the Indiana
General Assembly, in response to Apprendi, and anticipating that that decision might apply
to the death penalty despite the contrary holding in Walton v. Arizona, 497
U.S. 639 (1990), legislation was introduced to cure the perceived Apprendi problem in
the Indiana death penalty statute. In the meantime Saylor had been denied
post-conviction relief, and on March 20, 2002, this Court affirmed the denial of
relief. Saylor, 765 N.E.2d at 535. Six days later, on March
26, 2002, the General Assembly amended Indianas death penalty statute to remove the
express authority to impose death even if the jury recommended against it.
Act of March 26, 2002, 2002 Ind. Acts 117; Ind. Code § 35-50-2-9(e)
(2002). On June 24, 2002, the United States Supreme Court decided Ring
v. Arizona, 536 U.S. 584 (2002), which overruled Walton and applied Apprendi to
capital cases. The result is that under current Indiana law a jury
recommendation against death would preclude imposition of the death penalty.
Saylor now seeks rehearing, citing the new statute as well as the logic
of
Apprendi.
See footnote
He makes four claims: 1) his death sentence is
unconstitutional in light of Apprendi and Ring, 2) the amendments to the death
penalty statute should apply to him, 3) he was denied a fair trial
because of undisclosed juror-witness relationships, and 4) his counsel failed to properly investigate
the States case. We resolve Saylors claim on the basis of his
first two issues, and deny rehearing on the remaining issues.

Review of Saylors Sentence in Light of Changes in the Law

Saylor seeks rehearing of our decision affirming denial of post-conviction relief. He
points to the changes in both federal constitutional jurisprudence and in our states
death penalty statute. For the reasons given below, we revise Saylors sentence
to a term of one hundred years.
Both parties address the issue in part as whether Ring is to be
applied retroactively. In Daniels v. State, 561 N.E.2d 487, 489 (Ind. 1990),
we adopted for Indiana state law the federal retroactivity analysis outlined in Teague
v. Lane, 489 U.S. 288 (1989). Teague deals with retroactivity on collateral
review, and begins with the premise that the court should apply a newly
declared constitutional rule to criminal cases pending on direct review. Id. at
304 (citations omitted). On collateral review the threshold question is whether the
new rule is procedural or substantive. If it is procedural, it is
generally not applicable to those cases on collateral review, that is, those which
have become final before the new rule was announced. Daniels, 561 N.E.2d
at 489 (citing Teague, 489 U.S. at 288). Saylors conviction and sentence
became final in 1997 when this Court affirmed his direct appeal. This
general rule has two exceptions: 1) rules which place certain kinds of
primary, private individual conduct beyond the power of the criminal law-making authority to
proscribe, and 2) those which require the observance of procedures that . .
. are implicit in the concept of ordered liberty, and without which the
likelihood of an accurate conviction is seriously diminished. Id. at 490 (citing
Teague, 489 U.S. at 307, 313) (internal citations omitted).
The majority of courts to have considered the issue have held that Ring
is an application of the procedural rule announced in Apprendi, and as such
does not apply retroactively to cases on collateral review. Lambert v. McBride,
No. 03-1015, 2004 U.S. App. LEXIS 6658 (7th Cir. April 7, 2004); Turner
v. Cosby, 339 F.3d 1247 (11th Cir. 2003); Cannon v. Mullin, 297 F.3d
989 (10th Cir. 2002); State v. Lotter, 664 N.W.2d 892 (Neb. 2003); Colwell
v. State, 59 P.3d 463 (Nev. 2002). Summerlin v. Stewart, 341 F.3d
1082 (9th Cir. 2003) (en banc), cert granted sub nom, Schriro v. Summerlin,
124 S.Ct. 833, is the only case we have found that applies Ring
retroactively. The United States Supreme Court granted certiorari in Summerlin on December
1, 2003. At this writing we have no definitive decision on the
retroactive application of Ring under Teague. For the reasons given below we
do not need to await resolution of this federal constitutional issue, and also
do not address whether, even if there is no federal requirement that Ring
be applied retroactively, Indiana may nevertheless choose to apply it to pre-Ring convictions
as a matter of state law.
Article VII, Section 4 of the Indiana Constitution provides that [t]he Supreme Court
shall have, in all appeals of criminal cases, the power to . .
. review and revise the sentence imposed. Appellate Rule 7(B) implements that
authority: The Court may revise a sentence authorized by statute if, after
due consideration of the trial courts decision, the Court finds that the sentence
is inappropriate in light of the nature of the offense and the character
of the offender.
Sentencing decisions are highly case sensitive and are for the most part best
left to the discretion of the trial court as long as the sentence
comports with applicable statutes and is imposed in accordance with applicable procedural requirements.
Nevertheless, the power to review and revise was expressly conferred by the
1970 amendment to the Indiana Constitution. In
Serino v. State, 798 N.E.2d
852 (Ind. 2003), this Court recently reviewed the history of Indiana appellate review
of sentencing. In brief, the Indiana Constitution was amended in 1970 to
recognize the desirability of encouraging consistency in sentencing in similar cases despite differences
of time, place, and sentencing judge. In taking this approach, Indiana expressed
a preference for the British tactic of appellate review of sentences, and did
not pursue the much more severe restrictions on sentencing discretion imposed on federal
courts at roughly the same time in our nations history by the Federal
Sentencing Guidelines. See generally Walker v. State, 747 N.E.2d 536, 537-38 (Ind.
2001) (addressing prior version of Indiana Appellate Rule 7(B)); Charles J. Ogletree, Jr.,
Commentary:
The Death of
Discretion?
Reflections on the
Federal Sentencing Guidelines
, 101
Harv. L. Rev. 1938, 1940-42, 1957-58 (1988); Joel M. Schumm, Survey: Criminal Law
and Procedure: Recent Developments in Indiana Criminal Law and Procedure, 34 Ind.
L. Rev. 645, 670-71 (2001).
We have long explained that review of a death sentence must be more
intensive than that required for a term of years. We reaffirm our
goal of assuring evenhanded operation of the death penalty statute by reviewing death
sentences in light of other death penalty cases.
Cooper v. State, 540
N.E.2d 1216, 1218 (Ind. 1989) (quoting Judy v. State, 275 Ind. 145, 169,
416 N.E.2d 95, 108 (1981)). Indeed, we have stated [t]he thoroughness and
relative independence of this Courts review is a part of what makes Indianas
capital punishment statute constitutional. Cooper, 540 N.E.2d at 1218.
Before 2002, Appellate Rule 7(B) appellate review called for revision of a sentence
only if it was manifestly unreasonable. The rule now provides that an
appellate court may revise a sentence if it is inappropriate. On direct
appeal, we reviewed Saylors claim under Article VII, Section 4 and concluded that
the death penalty was appropriate under the statute. Saylor v. State, 686
N.E.2d 80, 89 (Ind. 1997). Since that time the legal landscape has
significantly changed. Even if the Sixth Amendment does not bar Saylors execution
for a pre-Ring crime, as a matter of Indiana state law Saylor, if
tried today, could not be sentenced to death without a jury recommendation that
death be imposed. Under these circumstances we conclude that his death sentence
is inappropriate and should be revised.
Exercise of our Article VII powers to revise a death sentence in light
of changes in the legal landscape is not unprecedented. In
Cooper v.
State, this Court revised Paula Coopers sentence from death to a term of
years because she would have been the only fifteen-year-old defendant to be executed.
In Coopers case, after she was sentenced to death two significant events
occurred. First, the legislature amended the death penalty statute so that it
applied only to persons sixteen years old or older at the time of
the crime. Cooper, 540 N.E.2d at 1219. The effective date of
this amendment made it inapplicable to Cooper. Id. Second, the United
States Supreme Court had recently decided Thompson v. Oklahoma, 487 U.S. 815 (1988),
where, in a plurality opinion, the Court held it would be cruel and
unusual punishment to execute a fifteen year old.
Cooper is not squarely controlling precedent for Saylors case. First, Cooper was
a direct appeal and Saylor seeks collateral review. It is also true
that Cooper would have been both the first and the last Indiana convict
to be sentenced to death for a crime committed at the age of
fifteen. Saylor cannot claim he would be the only person executed despite
a jury recommendation to the contrary, but he comes very close. Currently
two other inmates are on death row after a judge overruled the jurys
recommendation against death, but no execution has been carried out in Indiana where
the jury recommended against death. There is one instance where the jury
was unable to agree on a recommendation and the death penalty was carried
out, Burris v. State, 642 N.E.2d 961 (Ind. 1994); and another defendant sentenced
in that circumstance remains on death row today. Holmes v. State, 671
N.E.2d 841 (Ind. 1996). Despite these differences both Paula Cooper and Benny
Saylor present situations in which the legislature, after their sentences were imposed, enacted
significant changes in the requirements for the death penalty that would render them
ineligible for a death sentence in a trial conducted today. Even in
dealing with the death penalty not every change in the law affects earlier
trials. But we conclude it is not appropriate to carry out a
death sentence that was the product of a procedure that has since been
revised in an important aspect that renders the defendant ineligible for the death
penalty.
In sum, Saylor is one of only three individuals currently under a death
sentence despite a jurys recommendation to the contrary. By virtue of the
2002 amendments to the death penalty statute, no future executions will take place
without a jury recommendation. Under these circumstances, it is inappropriate to carry
out a death sentence that could not be imposed today. Accordingly, we
revise the sentence to a term of imprisonment. It remains to fix
that term.
Saylor was charged and convicted of murder, murder in the commission of a
robbery, robbery, and confinement. The two murder convictions merge into one.
At the time of Saylors 1992 crime, the punishment of life without parole
was not available in Indiana. As we noted in Saylors direct appeal,
life without parole was available only for crimes committed after June 30, 1993.
Saylor, 686 N.E.2d at 83-84. Sentencing options for murders committed before
that date were either a term of years or death. Ind. Code
§ 35-50-2-3 (1988). The maximum term of years for murder at the
time of Saylors crime was forty years, with up to twenty years added
for aggravating circumstances. Id. Saylor was also convicted of robbery and
confinement, both Class B felonies carrying a presumed sentence of ten years, and
up to ten years added for aggravating circumstances. I.C. § 35-50-2-5.
As we noted in Saylors direct appeal, the trial court, in imposing death,
found that the State had proved two death penalty aggravating circumstances beyond a
reasonable doubt: 1) Saylor intentionally killed the victim while attempting to commit a
robbery; and 2) at the time the murder was committed, Saylor was on
probation after receiving a sentence for burglary. Saylor, 686 N.E.2d at 85.
In the sentencing order, the trial court noted each of the eight
mitigating circumstances listed in Indiana Code section 35-50-2-9(c). After discussing each circumstance
in detail, the court expressly found that none of the mitigating circumstances in
I.C. § 35-50-2-9 were proven or established in this case. Saylor, 686
N.E.2d at 85.
Saylor does not challenge the courts finding of aggravating circumstances, but instead argues
that there were several mitigating circumstances supported by the record that should have
been considered by the court. As we held in Saylors direct appeal,
the other mitigating circumstancesthat he would respond affirmatively to confinement, that he was
intoxicated at the time of the offense, and that he had a troubled
childhoodwere not clearly supported by the record and are entitled to little weight.
Id. at 86, 89. Accordingly, we sentence Saylor to forty years
for murder, enhanced by twenty years reflecting the trial courts conclusion that the
maximum penalty should be imposed. For the same reason, we revise the
sentences for robbery and confinement to twenty years in each case, with all
these sentences to be served consecutively. The result is a total sentence
of one hundred years.

Conclusion

This case is remanded to the trial court with instructions to enter a
sentence of sixty years for murder, twenty years for robbery and twenty years
for confinement, all to be served consecutively.
Dickson, Sullivan, and Rucker, JJ., concur.

Shepard, C.J., dissents with opinion.

SHEPARD, Chief Justice, dissenting.
As we did when the Court considered the appropriateness of Saylors sentence during
his direct appeal, we have always approached the question by examining all of
the aggravating and mitigating circumstances.
Saylors case presented two aggravating circumstances. One was that he intentionally killed
Judy VanDuyn, whose only offense was taking her clothes to the laundromat late
in the evening. The weight of this aggravator, measured by the level
of Saylors intentionality, has always seemed substantial. Saylor stabbed Ms. VanDuyn forty-five
times, aiming half of these blows at her left breast.
The second aggravating circumstance was that Saylor committed the murder at a moment
when the judicial system had offered him grace on the promise of good
behavior: he was on probation when he killed a human being over
the $22 she was carrying.
As Justice Boehm notes, both the sentencing judge and this Court have rejected
most of Saylors claims concerning mitigating circumstances. Until today, only a few
of these have been found viable: a troubled childhood, consuming drugs and
alcohol at the time of the offense, and a history of substance abuse.
We earlier declared that, individually and collectively, these were entitled to low
if any mitigating weight.
Saylor, 586 N.E.2d at 89.
To these mitigating circumstances, the Court now adds the changes in the death
penalty statute prompted by
Apprendi v. New Jersey, 530 U.S. 466 (2000).
These changes had little to do with defendants situated like Benny Saylor, whose
jury, after all, found beyond a reasonable doubt both the aggravating circumstances that
render him eligible for the death penalty. I thus do not regard
these amendments, even if one can plausibly describe them as a mitigating circumstance,
as adding enough to make Saylors sentence inappropriate. The high level of
culpability reflected in the two aggravators still more than outweigh the modest mitigators.
But so it will be. Saylor will be relieved of the penalty
imposed for his 1992 crime. And, it is clear enough, so will
others who are presently sitting on death row.

Footnote:
The two others are William Minnick and Christoper Peterson, now known as
Obadyah Ben-Yisrayl. This Court affirmed Minnicks conviction on direct appeal in Minnick
v. State, 544 N.E.2d 471, 482 (Ind. 1989). His petition for habeas
corpus is currently pending in the Northern District of Indiana. Ben-Yisrayl was
convicted and sentenced to death in two separate trials in Lake County and
Porter County. In Lake County, the trial court imposed death despite the
jurys recommendation against it. That was affirmed on direct appeal. Peterson
v. State, 674 N.E.2d 528 (Ind. 1996). Denial of post-conviction relief was
affirmed, Ben-Yisrayl v. State, 729 N.E.2d 102 (Ind. 2000), and the district court
denied his habeas petition. His appeal of denial of federal habeas is
pending in the Seventh Circuit. In the Porter County case, the jury
recommended death and we affirmed. Ben-Yisrayl v. State, 690 N.E.2d 1141 (Ind.
1997). We also affirmed the denial of post-conviction relief. Ben-Yisrayl v.
State, 753 N.E.2d 649 (Ind. 2001). The Northern District of Indiana recently
granted Ben-Yisrayls petition for habeas corpus in the Porter County case, and the
State has appealed. Ben-Yisrayl v. Davis, 277 F. Supp. 2d 898, 907
(N.D. Ind. 2003).

Footnote:
Saylor sought rehearing
on April 19, 2002. At that time the
United States Supreme Court had granted certiorari but not yet decided Ring.
After Ring was decided, both parties submitted supplemental briefs.